Marital Property Division

Florida is an Equitable Distribution State.

"Equitable distribution" refers to the way that spouses in Florida divide their property and debts when they divorce. While some states have community property rules requiring an exactly equal division of marital property and debts, most states require only an "equitable" or fair division. An equitable division in Florida in many times will mean an equal division.

How Does an Equitable Distribution Work?

The procedure to be followed by Courts when distributing property in dissolution of marriage cases is found in Section 61.075 (3), Florida Statutes. Initially, the Court must classify all assets and liabilities owned by the parties, either jointly or individually, as either "marital" or "non-marital." Once this classification is complete, the Court must distribute to each spouse that spouse's non-martial assets and liabilities. Thereafter, marital assets and liabilities must be distributed in accordance with various factors, some of which are found in the statute.

What is "Marital" and "Non-Marital" Property?

Assets and liabilities acquired or incurred during the marriage, individually or jointly, are presumed to be marital. A party wishing to overcome this presumption must prove that the asset or liability is non-marital. The test for determining whether assets are marital is not how they are titled, but whether they we acquired legally and beneficially during the marriage by one or both of the parties. Liabilities incurred during the marriage will be deemed marital despite one parties' ignorance of the liabilities.

A spouse can change separate property into marital property by changing the title into a form of joint ownership. A Florida Court will presume that any property a couple owns as "tenants by the entireties" as marital property, even if one spouse acquired the property separately before marriage.

The increase in value of separate property during the marriage is also marital property if it resulted from the contribution of marital funds or the active efforts of either spouse. This includes efforts such as maintaining a home, or working in a business. A spouse can also make a gift of separate property to the marriage by mixing it with marital property sometimes called "commingling." Commingling can happen by virtue of depositing marital funds into a premarital bank account, or paying the mortgage on a separate property with marital earnings. In such situations, a Court might treat all of the property as marital. The spouse claiming separate property would have the burden of demonstrating through detailed financial records the separate source of the funds that were utilized. These situations can prove to be very complicated.

Factors to Be Considered in Property Divisions.

In circumstances where the parties cannot reach an agreement regarding division of marital property, the Court is required to make the division. The following factors are to be considered by the Court in distributing marital assets and liabilities:

(a) The contribution to the marriage, including care and education of children and homemaking services.

(b) The economic circumstances of the parties.

(c) The duration of the marriage.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim of interference by the other party.

(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the non-marital assets of the parties.

(h) The desirability of retaining the marital home as a residence for any dependent child or party when equitable.

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within two years prior.

(j) Any factors necessary to do equity and justice between the parties.

Free Consultation.

As can be seen from the above, property distributions can be very complex requiring extensive documentation and proof to establish the elements that are to be considered by the Court for an appropriate distribution of assets and liabilities. A knowledgeable attorney with significant experience regarding family law can prove to be invaluable where substantial assets and liabilities are at stake. Peeler Law Firm is available for a free consultation to discuss your case by calling 850-462-2563 for an appointment. Stan Peeler has in excess of 30 years of experience with family law matters and would be pleased to address any and all family law issues you may have, including Florida marital property distributions.